DOJ Clarifies That Memo on Russia Probe Was Never About Prosecuting Donald Trump

The Department of Justice issued clarification regarding a legal memo on whether President Donald Trump had potentially obstructed justice during the Russia investigation, saying the contentious document was not about prosecuting Trump, the Associated Press reported.

A portion of the memo made public by the Biden administration shows senior DOJ officials concluded that the evidence could not support an obstruction prosecution against Trump. The DOJ said the memo's purpose was to address whether information gathered by Special Counsel Robert Mueller could be used in a criminal case.

"The Attorney General's determination on that point—and on what, if anything, to say to the public about that question—undoubtedly qualifies as a decision, even if it could not have resulted in an actual prosecution of the sitting President," Justice Department lawyers wrote in a motion filed Monday.

"There was no legal bar to determining that the evidence did or did not establish commission of a crime, a determination the Attorney General made and announced," they added.

The part of the memo that DOJ leaders agreed to disclose reveals that two senior officials told former Attorney General William Barr that Mueller's evidence was not enough to prove beyond a reasonable doubt that Trump had obstructed justice.

For more reporting from the Associated Press, see below.

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The Department of Justice issued clarification regarding a legal memo on whether President Donald Trump had potentially obstructed justice during the Russia investigation, saying the contentious document was not about prosecuting Trump. Above, FBI Director Robert Mueller speaks during a news conference at FBI headquarters in Washington, D.C. Alex Wong/Getty Images

The Biden administration is appealing a judge's order directing it to release in its entirety a legal memo on whether Trump had obstructed justice during the Russia investigation.

U.S. District Judge Amy Berman Jackson earlier this month ordered the Justice Department to release the March 2019 memo as part of a public records lawsuit from a Washington-based advocacy organization. She said the department, under Barr, had misstated the purpose of the document in arguing that it was legally entitled to withhold it from the group, Citizens for Responsibility and Ethics in Washington.

In the motion filed late Monday, the deadline for deciding whether it would comply with the judge's decision or appeal it, the Justice Department said that it continued to believe that the full document should be exempt from disclosure. The lawyers asked Jackson to put her order on hold while it appeals the ruling to a federal appeals court.

At issue is a March 24, 2019 memo from the Justice Department's Office of Legal Counsel that was prepared for Barr to evaluate whether evidence collected in Mueller's investigation could support an obstruction of justice prosecution of the president. Barr has said he looked to that opinion in determining that Trump did not illegally obstruct the Russia probe.

The Justice Department turned over other documents to CREW as part of the group's lawsuit, but declined to give it the OLC memo. Government lawyers said they were entitled under public records law to withhold the memo because it reflected internal deliberations among lawyers before any formal decision had been reached.

But Jackson said those arguments were disingenuous because the memo was prepared for Barr at the same time as a separate Justice Department letter informing Congress and the public that Barr and senior department leaders had concluded that Trump had not obstructed justice.

She said the OLC memo could therefore not have been "predecisional" in nature if the Justice Department had already decided that there would be no obstruction case.

In its motion Monday, Justice Department lawyers said the government never meant to mislead the court but acknowledged that some of its language could have been clearer.

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The Department of Justice issued clarification regarding a legal memo on whether President Donald Trump had potentially obstructed justice during the Russia investigation, saying the contentious document was not about prosecuting Trump. Above, Trump listens as Nevada business leaders talk at Trump International Hotel Las Vegas on October 28, 2020. Evan Vucci, File/AP Photo